Bagging the Plastics Ban: Washtenaw County’s Never-was Ordinance

It was one of those great outrages. In the closing days of the 2016 session, the Michigan Legislature killed any possibility of Washtenaw County’s attempt to regulate plastic grocery bags. “Ban on local plastic bag bans now Michigan law”, reported MLive. Outgoing State Representative Jeff Irwin decried this defeat for local control. This was seen as another case of Republican domination of progressive Michigan municipalities (cities and counties). A few days later, another news account stated, Washtenaw County concedes it can’t enforce disposable bag ordinance. The bill (Senate Bill 853) is succinct but also thorough: it mentions regulation of any “auxiliary container” of almost any composition as being forbidden for local units of government. (There goes any hope of banning styrofoam clamshells.)

But the story is more complicated than it appears at first and there are some questions.

Washtenaw County’s ordinance is the only such regulation in the State of Michigan.

Senate Bill 853, currently pending in Michigan legislature, seeks to withhold local government authority to regulate “auxiliary containers,” a category within which carryout grocery bags falls. If SB853 is adopted by the State of Michigan, it would act to preempt a County bag ordinance. Washtenaw County seeks to retain its local authority to regulate the material in furtherance of its duty to optimally manage solid waste within its geographic boundaries, and to increase Washtenaw County’s recycling and waste economy to full extent possible.

The motivation for adopting an ordinance in the face of a likely preemption by the State is unclear. Are we trying to make a point or hoping that it will survive to be enforced? That expression about “seeks to retain its local authority” seems to argue the first.

In spite of most indications, the ordinance is not just about plastic bags. It also applies to paper bags.

The proposed bag ordinance is not a ban. And it sanctions disposable paper bags just as much as plastic bags. This although almost all the educational material about the ordinance specifies plastic bags. The slide show on the ordinance given to the BOC in a work session is all about the hazards of plastics. The memo that accompanied the resolution stated that it was about “a policy to combat the problems caused by excessive plastic bag waste in our community”. The resolution setting the public hearing on the ordinance mentions only plastic bags. And yet the ordinance cracks down just as hard on paper grocery bags.

Did the Commissioners know what they were passing?

Now, it is hard to love plastic grocery bags. They are ugly, consume valuable unrenewable resources, are a hazard to animals, glob up machinery of recycling plants, and last longer than the human race. They actually cost the County and other units of government money. They are difficult to recycle even when collected. Surely no one who cares could object to banning them, and in fact this was a very popular idea.

Paper grocery bags are another matter. Many of us reuse these bags many times or at least once. They compost. They are recyclable. They are most often made from recycled paper. No, they are not a “zero footprint” item but just not in the same class as a plastic bag. Besides, that is not how this ordinance was being sold. Yet, they are being treated exactly the same as plastic bags in the ordinance. The indication is that customers should bring reusable bags (most often cloth).

The whole enterprise has a rather unpleasant air of bait-and-switch. Don’t like plastic bags? Fine, and also you can’t use paper bags (hidden in the fine print).

It suddenly seems to be about money.

Here’s what the ordinance does. It imposes a ten cents fee on the consumer for each plastic OR PAPER bag used. Of that, 8 cents goes into a new fund (the Stewardship Fund) that the County has created. The retailer gets 2 cents, which is to be used only for enforcing the ordinance. There are also civil infraction fines for retailers who do not cooperate.

What this does is to create a monetary incentive for the County for consumers to use plastic bags (or paper). You rush into Meijer to buy some milk and bread. Cashier says “it’ll cost you 10 cents per bag”. You say, “whatever”. Out the door. It actually incentivizes the retailer to keep on providing these bags too. I can’t imagine the County sending around deputies to check on the quality of their environmental education efforts. The cost to the retailer for providing plastic bags is less than for paper bags, but they get to keep the same fee.

So how effective would this have been in preventing use of plastic bags? My estimation is, not very. If your budget is very, very tight, you might sweat those couple or five dimes. Or you might remember to bring bags whenever you have a big shopping to do. (As far as I can tell, no forgiveness for simply reusing old paper bags, either. The ordinance imposes conditions on the “reusable bag” that may be used.) Mostly, it would just be an additional cost that most consumers would pay at checkout. And money would go to the County.

It is hard to escape the thought that this might be a way to raise revenue for the County’s solid waste endeavors as much or more than actually changing behavior on bags. Those fees would add up. Do you know how hard it is these days for counties to get money? And the Washtenaw County solid waste program used to be dependent on tipping fees from the Salem Township landfill. I don’t know how that is going these days.

By the way, I think the fees may not have passed the test of the Bolt decision. Michigan municipalities are not supposed to impose new fees unless they are related to the delivery of a specific service. I don’t see how this qualifies. One of those sticky only-in-Michigan constitutional issues.

If only…

What might have worked? There are many examples around the country. If the County could have simply banned use of plastic bags (and it does ban some things, like smoking in workplaces), that would have achieved the stated objective more simply and effectively. For reducing waste due to paper bags: many retailers even now give a 5 cent credit for each bag you bring in. Depending on the market, they could increase that to 10 cents and raise their prices slightly. That is essentially the same as charging 10 cents for use of a new bag.

Good legislation should achieve its stated goal without being any more intrusive than necessary. This did not pass the test.

Meanwhile, let’s lean back and blame it on the Republicans. They probably deserve it.